In the Matter of the Estate of John A. Teinert, Deceased--Appeal from County Court at Law of Coryell County

IN THE

TENTH COURT OF APPEALS

No. 10-07-00297-CV

In the Matter of the Estate of

John A. Teinert, Deceased

From the County Court at Law

Coryell County, Texas

Trial Court No. 5115

ORDER denying motion to recuse

or, in the alternative, to disqualify

Appellant Laurance A. Kriegel has filed a motion to recuse or alternatively to disqualify each of the justices of this Court.

Disqualification and recusal of appellate judges is controlled by Rule 16 of the appellate rules. Tex. R. App. P. 16. A motion to disqualify may be raised at any time. McCullough v. Kitzman, 50 S.W.3d 87, 88 (Tex. App. Waco 2001, order). Grounds for disqualification are set forth in the Constitution. Tex. Const. art. V, 11; see generally In re Union Pac. Res. Co., 969 S.W.2d 427 (Tex. 1998) (citing Kilgarlin & Bruch, Disqualification and Recusal of Judges, 17 St. Mary s L.J. 599 (1986)). Texas Rule of Civil Procedure 18b also lists the instances in which a justice is disqualified to hear a matter. Tex. R. Civ. P. 18b(1). The appellate rules do not currently provide a procedure for filing a motion for disqualification, so we have followed the recusal procedure to address the disqualification motion. Tex. R. App. P. 16.3; McCullough, 50 S.W.3d at 88.

We have also utilized the procedure set forth in the rule to address the merits of the motion to recuse. Tex. R. App. P. 16. Rule 18b lists the reasons why a justice should recuse himself or herself in a pending matter. Tex. R. Civ. P. 18b(2).

Under Rule 16.3, after receipt of the motions and prior to any further proceeding in this case, Chief Justice Gray and Justices Vance and Reyna each considered the motion in chambers. Tex. R. App. P. 16.3(b). None of them found a reason to disqualify or recuse himself and, under Rule 16.3(b), certified the issue to the panel assigned to this case. Id.; McCullough, 50 S.W.3d at 88. The panel then decided each motion with respect to the challenged justice by a vote of the remaining members. See id. No challenged justice sat with the remainder of the panel when his challenge was considered. See Tex. R. App. P. 16.3; McCullough, 50 S.W.3d at 88.

In each instance, the other members of the panel found that the justice under consideration is not disqualified under article V, section 11 of the Texas Constitution, i.e., does not have an interest in the subject matter of the controversy, is not related to a party by affinity or consanguinity within the third degree, and has not been counsel in the case. Tex. Const. art. V, 11; Tex. R. App. P. 16.1; Tex. R. Civ. P. 18b(1). Therefore, the motion to disqualify is denied with respect to each justice.

The determination of whether recusal is necessary must be made on a case by case, fact intensive basis. McCullough, 50 S.W.3d at 89. In each instance, the remaining members of the panel found the motion without merit and found no reason to recuse the justice under consideration. Tex. R. App. P. 16.2, 16.3(b); Tex. R. Civ. P. 18b(2). Therefore, the motion to recuse is denied with respect to each justice.

PER CURIAM

Before Chief Justice Gray,

Justice Vance, and

Justice Reyna

Motion denied

Order issued and filed January 30, 2008